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Termination Of Employment (Law Through The Cases).

By abracadabra on Sunday 21st of June

115


The dismissal of an employee takes effect from the day his dismissal letter is written and served on him. Where there is a retrospective dismissal date different from the date on his on dismissal letter, a dismissed employee is entitled to keep his salary or claim arrears of salary due to him upto the date on his dismissal letter.
AKINBOLA vs. MINISTRY FOR FEDERAL CAPITAL TERRITORY & ANOR.(2018)LPELR-45848(CA)






ISSUE: TERMINATION OF EMPLOYMENT-Can the termination of the contract of an employee be made to take effect from a retrospective date






PRINCIPLE:
"The complaint of the Appellant under Issue 4 is that the act of backdating the purported termination is wrong and therefore a nullity because neither the Civil Service Rules nor Exhibit 2 gives such power to
the Respondent. And that the process of arriving at the said backdated termination is unlawful. It amounts to a nullity. Rule 030408 of the Public Service Rules, 2006 provides that:-
"030408 - When an officer is dismissed, no notice or emolument in lieu shall be given to him/her and his/her dismissal shall take effect from the date on which he/she is notified thereof. This date shall be
notified by the Permanent Secretary/Head of Extra-Ministerial Office concerned to the Federal Civil Service Commission and to the Office of Establishments and Pension, as soon as possible."
The Plaintiff has in this case adequately pleaded his letter of employment and its terms and the letter of his promotions and letter of his dismissal from service dated 30/1/2002. The Respondents filed
Statement of Defence wherein they admitted that the employment of the Appellant was regulated by Civil Service Rules. Though he was said to have been dismissed by the Respondents but in between
Appellants suspension and query given him in 1999 the Appellant was promoted in 2002. These were admitted in paragraph 2 of Respondents Statement of Defence in paragraph 2 thereof. As at 30/11/2002
he was on Grade Level 08.
I have carefully gone through the Exhibits tendered by the Appellant. By Exhibit 1, the Appellant was appointed on Grade Level 04. He was upgraded to pensionable appointment on 1st February 1991 as an
Interpreter/Operator and by Clause (v) of Exhibit 2, dated 1/2/91 the appointment may be terminated by either party giving 30 days notice or payment in lieu unless the Appellant is summarily dismissed. He
was promoted vide letter dated 27th January, 1998 as Senior Foreman in recognition of his loyalty, hard work and devotion to duty by Exhibit 3. By a letter dated 24/11/1999, Appellant was suspended with
immediate effect and to desist from reporting for duty until investigation concerning issue of financial misappropriation against his was concluded. This was by Exhibit 5 dated 24/11/1999. By January 31st
2000, a little over one month after suspension, the Appellant was promoted vide Exhibit 4 from Works Superintendent on Grade Level 08 with effect from 1st January, 1999.
The letter reads in full thus:-
"FEDERAL CAPITAL DEVELOPMENT AUTHORITY.
DEPARTMENT OF ADMINISTRATION
P.M.B. 24
ABUJA. NIGERIA
PE. 98/ENGR/GL. 08/SN. 46.
REF. NO. FCDA/55/S. 120/VOL. II
TEL....
MR./MRS./MISS. ABIADE S. AKINSOLA
TELEX....
U.F.S. DIRECTOR OF ENGINEERING SERVICES.... DATE: 31ST JANUARY, 2000 FEDERAL CAPITAL DEV. AUTHORITY
P.M.B. 24
ABUJA
LETTER OF PROMOTION
I am directed to inform you, with pleasure, that the Honourable Minister has approved your promotion to the post of HIGHER WORKS SUPERINTENDENT on GL. 08 to take effect from 1st January, 1999, for the
purpose of seniority in the service.
2. However, you will start to receive the salary GRADE LEVEL 08... with effect from 1st October, 1999.
3. You will also retain 1st January as your incremental date.
4. This promotion has been made in recognition of your loyalty, hard work, devotion to duty and sense of responsibility. It is therefore hoped that you will continue to maintain the spirit of commitment,
which you have always shown.
5. Congratulations.
Sgd.
C. C. ASIEGBUNAM
for: Honourable Minister (F.C.T)."
The letter from Respondents tendered by Appellant as Exhibit 6 also invited Appellant to attend 2001 Promotion/Interview/Screening of 8/10/2001.
Three months later the Respondents purportedly dismissed the Appellant from their employment vide letter dated 30/1/2002. The letter reads in full:-
"FEDERAL CAPITAL DEVELOPMENT AUTHORITY.
DATE: 30/1/2002
P.M.B. 24
ABUJA, NIGERIA
DEPARTMENT OF ADMIN. & SUPPLIES
OUR REF. Pc. 9517/VOL. 1/102
TEL....
Mr. BIADE S. AKINSOLA
DATE: 30/1/2002
(Higher Works Superintendent)
u.f.s.
The Director
Maintenance & Engineering Services
FCDA - FCDA
DISMISSAL FROM SERVICE
You will recall that you were reported to have been involved in fraudulent and corrupt practices by collecting N150,000.00 from Mrs. Aisha Wakili and N160,000.00 from Mrs. Hafsat Ibrahim Moribo
respectively for processing and transfer of the same government quarters .....Block 8, Flat 20, ..... Garki Abuja to them. You were therefore queried and you submitted a representation.
2. After a thorough deliberation on your presentations, Establishment Committee noted that you failed to exculpate yourself. Consequently, and in accordance with the extant rules (Public Service Rule. No.
04401), I am directed to convey to you the Management approval of your dismissal from the service with effect from 24th November, 1999.
3. You are therefore, to submit to your immediate supervising officer all the Authority's property in your possession (including your Identity Card).
4. By a copy of this letter, the Director of Engineering & Maintenance Services is being advised to formally check you out of your official quarters.
Sgd.
A. M. Adeleye
For: Executive Secretary, FCDA."
The letter now made reference to allegation of fraudulent and corrupt practices by collecting N150,000.00 from Mrs. Aisha Wakili and N160,000.00 from Mrs. Hafsat Ibrahim Moribo and that an establishment
Committee sat on the matter. The Appellant has stated in his pleadings and evidence that he was not invited to appear before any Panel. There was no denial from the Respondents as they failed to give
evidence on their pleadings. They abandoned their pleadings and called no evidence at the trial leaving only the version of Appellant evidence before the trial Court. The dismissal of Appellant must be an
afterthought after they have consistently rewarded the Appellant with promotions.
In any event, the reason given for Appellant's suspension in 1999 was that he was being investigated for a matter of misappropriation and thereafter he was promoted for hard work and loyalty. It cannot be
said that the Appellant was given any opportunity of being heard. The dismissal is a clear breach of Section 36 of the Constitution of the Federal Republic of Nigeria 1999 as amended. He ought to have been
invited to appear and defend himself before the Committee before whom allegation of corrupt practices were laid or treated against the Appellant. The dismissal cannot stand having infringed the right of
Appellant to fair hearing.
By Section 36(1) of the Constitution of the Federal Republic of Nigeria (Promulgation) 1999 as amended, it is guaranteed that in the determination of his civil rights and obligations, including question or
determination by or against any government or authority, a person shall be entitled to fair hearing within a reasonable time by a Court or other Tribunals established by law in such manner as to secure its
independence and impartiality.
Fair hearing means a trial conducted according to all the legal rules formulated to ensure that justice is done to the parties to the cause. It does not matter whether the Panel is Administrative or quasi
criminal panel or body. See:-
1. R. ARIORI & ORS. v. MURAIWO B. O. ELEMO & ORS. (1983) 1 SC 13 AT 23-24 per OBASEKI, JSC.
2. CHIEF J. L. E. DUKE v. GOVERNMENT OF CROSS RIVER STATE & ORS. (2013) 8 NWLR (PART 1356) 347 AT 366 B-C per GALADIMA, JSC, who said:-
"It now remains for me to consider whether the appellant was given a fair hearing before issuance of Exhibit 3 of the 2nd Respondent.
By the term fair hearing within the context of Section 36(1) of the 1999 Constitution is that a trial ought to be conducted in accordance with all legal norms designed to ensure that justice is done at all cost
to all parties. The principle of fair hearing is that both sides must be given an opportunity to present their respective cases. It implies that each side has the right to know what case is being made against it
and be given ample opportunity to react or respondent thereto."
In other words, equal opportunity must be given and accorded all sides to the dispute before a Court of law or before Disciplinary Committee, Administrative Panel and the likes in accordance with the
dictates of Section 36(1) of the 1999 Constitution as amended. Where it is proved that a party was not accorded or given opportunity to defend himself before a Court or Tribunal, the proceedings of such
Court, Tribunal, Panel or Ad Hoc Committee would be rendered a nullity and will be vacated or set aside forthwith. See NICHOLAS CHUKWU JEKWU UKACHUKWU v. P.D.P. & ORS. (2014) 2 SCM 2002 AT 223 F-D
224 A-H per K. M. O. KEKERE-EKUN, JSC, who said:-
"The fundamental issue to be considered in the resolution of this issue is what is meant by fair hearing? The constitutionality of the right to fair hearing is not in doubt. Section 36(1) of the Constitution of the
Federal Republic of Nigeria, 1999 (as amended) provided thus:
"36(1) In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable
time by a Court or other Tribunal established by law constituted in such a manner as to secure its independence and impartiality."
It is also well settled that any proceedings conducted in breach of a party's right to fair hearing, no matter how well conducted would be rendered a nullity. See: Tsokwa Motors (Nig.) Ltd. v. UBA Plc. (2008)
All FWLR (Pt. 403) 1240 @ 1255 A-B (2008) 1 SCM 204; Adigun v. A.G. Oyo State (1987) 7 NWLR (Pt. 53) 674; Okafor v. A.G. Anambra State (1991) 3 NWLR (Pt. 200) 59; Leaders & Co. Ltd. v. Bamaiyi (2010)
18 NWLR (Pt. 1225) 329, (2010) 12 (Pt. 2) SCM 120."
The Respondents claimed to have dismissed the Appellant pursuant to Public Service Rules No. 044-01. The Rule relied upon is not applicable to the Appellant's case. By their letter of dismissal to the
Appellant, the Respondents were fully aware that the disciplinary action against Appellant must be in accordance with Public Service Rules. The Appellant cannot be dismissed retrospectively. In other words, the
Respondents have no powers under the Public Service Rules to back date the dismissal of Appellant to 24th November, 1999 after he had been promoted and also invited for another promotion interview.
See:-
1. NEW NIGERIAN BANK LTD. v. FRANCIS OBEVUDIRI (1986) 3 NWLR (PART 29) 387 AT 401 per AGBAJE, JCA, later JSC, who said:-
The letter of dismissal of 20th June, 1979 from the Bank to the plaintiff was said to be with effect from 29th December, 1978. Dealing with this aspect of the letter which made the effective date of the
dismissal 29th December, 1978, the learned trial Judge said;
"The plaintiff's appointment with the Bank subsisted until the 20th June, 1979 when the letter of dismissal was written and presumably served on the plaintiff and not the 29th December, 1978 (the retrospective date)."
I entirely agree with the learned trial Judge on this view of hers. In this passage from the judgment of the learned trial Judge, in my view, held that the effective date of the dismissal of the plaintiff from the
services of the defendant was 28th June, 1979 and not 29th December, 1978 which was indicated in the letter of dismissal written to the plaintiff. Where I part company with the learned trial Judge is the
earlier findings of hers to the effect that the effective date in the letter of dismissal which she held to be invalid invalidates the whole of the grounds upon which the defendant relies for dismissing the
plaintiff. It is to be remembered that the defendant's case was that it dismissed the plaintiff for misconduct. The lower Court had found and I agree with it that the misconduct justified the summary dismissal
of the plaintiff. The plaintiff worked for the defendant up to 28th June, 1979 which was held by the lower Court to be the effective date of the dismissal of the plaintiff. The case of Healey v. Societe Anonyne
Francoise Ribastic (1917) 1 KB 946 when applied to the case in hand only means that the summary dismissal of the plaintiff by the defendant was good as from 28th June, 1979 and not as from the earlier
date during which period the plaintiff had worked for the defendant, that is to say, 29th December, 1978. So, applying Healey's case, the plaintiff is entitled to keep his salary or claim arrears of salary due to
him if he had not been paid for the period between 29th December, 1978 and 28th June, 1979. But this is not the position here. The learned trial Judge treated Healey's case as an authority for saying that the
dismissal for misconduct is invalid once the dismissal was made with retrospective effect.
I do not think that authority decides that. What it decides, in my view, I have just stated above."
2. UNDERWATER ENGINEERING & ANOR. v. DARUUA DUBEFON (1995) 6 NWLR (PART 400) 156 AT 164 D-G per OGWUEGBU, JSC, who said:-
"The next question is whether the dismissal or termination of the respondent with retrospective effect was proper. In which case, he would not be entitled to remuneration from May to October, 1982. The
contract was oral and the respondent's basic annual salary is N4,800.00 at N800.00 per month. His salary became due and his right to it vested at the end of each month. The respondent's employment was
in fact existing up to 12th October, 1982 when he was told that his services were no longer required. The right of the appellants to terminate the employment by reason of antecedent misconduct which was
known to the appellants all along and for which the respondent had been tried and acquitted did not entitle them to treat the contract of employment as having been determined in May, 1982. The
respondent was therefore entitled to recover his salary up to 12th October, 1982. I agree with the Court below that the effective date of the respondent's dismissal was 12th October, 1982 and not earlier.
See Healey v. Societe Anonyne Francoise Rubastic (1917) 1 KB 946. The respondent's absence from duty from 20th May to 12 October, 1982 was as a result of his arrest and prosecution at the instance of
the appellants. It cannot be said that he voluntarily absented himself from work without excuse. He was not interdicted during the period. Even after his acquittal and discharge, the appellants said nothing to
him about his employment until 12:10:82. He had every reason to believe and rightly too, that, his employment was still subsisting at least up to 12th October, 1982 when he received the oral instruction that
his services were no longer required by the appellants. He was fully entitled to his remuneration as it accrued from month to month, that is, from May to 12th October, 1982. The case of Browning & Ors. v.
Crimlin Valley collieries Ltd. (supra) which the learned Senior Advocate relied heavily upon has no application to this case. That case was correctly decided on its peculiar facts." Per IGE, JCA.(Pp.22-35,Paras.A-A).




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